Professional Documents
Culture Documents
November 2010 / 1
a specific individual, it may be and develop a quality human a confidential human source.
too late. A terrorist attack could source base identified by solid Having to get in front of the
have happened, financial losses investigative work. It is widely criminals is not a new problem
from a major cyber intrusion accepted that no great case will for law enforcement; rather,
may have occurred, or classified be made without a great human the authors offer a refreshing
national security information source. However, law enforce- approach to an ever-increasing
may have reached a foreign ment organizations need to shift demand to prevent violence,
adversary. The challenge of their focus by emphasizing a which—to do so—requires
countering these threats and more proactive approach to effective human sources.
avoiding the messy cleanup in source development. Instead of
their aftermath is to proactively employing a reactive mental- The Situation
develop a confidential human ity, they must look for sources Susan Clark, a seasoned
source base to help thwart of information before crimes agent, has been assigned to a
individuals and groups that do occur. This leads to the stress- joint terrorism task force for
not hold the best interests of ful question for both veteran the past 10 years. During her
the United States or its allies in officers and new hires, “Where tenure, she has had some solid
their thoughts and actions. do I find a human source with- successes and is well respected
Law enforcement train- out having a crime to tell me by both peers and managers.
ing academies and continuing where to look?” With seasoned Throughout her career, Clark
professional development law enforcement professionals has produced significant results
opportunities throughout this in short supply to share this type because she paid attention to
nation do an excellent job of of knowledge, the authors pres- details and quickly reacted to
emphasizing and teaching the ent one methodology for pro- new information as it developed
skills needed to both interview actively identifying and finding during the course of her
investigations.
Clark’s good friend and
partner, Smith, has worked on
the squad for many years, even
more than she. During their
years as partners, Smith taught
Clark a great deal about human
source development and had be-
come a true master of proactive-
ly finding and developing the
types of sources and informa-
tion needed to counter threats to
national security. Clark believed
that Smith enjoyed a high level
of success because of his sin-
Special Agent Dreeke serves Special Agent Sidener is
in the FBI’s Counterintelligence assigned to the FBI’s
cere interest in people and his
Division. Washington, D.C., office. ability to suppress his ego, two
of the strongest attributes of an
November 2010 / 3
the rules and procedures inside talents they both had for granted do I find sources with no crime
and out. Once given a piece until she found herself without to lead me to them?” Smith just
of information, no matter how his added skills. sat and listened in his patient
small, she had the tenacity for Clark walked down the hall way and kept encouraging her
running it to its logical conclu- to Smith’s office. Smith turned to talk. When she finished, he
sion and the acumen for piecing from his paperwork and said, gave her a lopsided smile and
all of the elements together to “Hey, what’s up with you?” said, “I was worried at first that
solve a case. Clark bit her lower lip and took you had a problem. This is an
On the other hand, Smith a deep breath. Smith offered her easy fix for you and me.”
was an “idea guy.” Clark would the chair he always kept next to Smith asked Clark if she
start briefing him on the details his desk for guests. She flopped ever thought about why they
of a case, and immediately all down with another sigh. Smith were so successful together. She
sorts of ideas would pop into his commented that he had not seen admitted that she had not until
she recently remembered his
ability to come up with ideas on
“
finding human sources. Smith
asked her if she ever consid-
Smith taught Clark a great deal ered how he came up with his
about human source development ideas. She sat back, thought
and had become a true master of for a moment, and realized
that she was starting to piece it
proactively finding and developing the together. Clark recalled that she
types of sources and information would determine the informa-
needed to counter threats tion they needed based upon
to national security. the specifics of the case. “Cor-
rect,” responded Smith, “then I
”
took the need you identified and
created what I thought of as the
ideal resume of an individual
head. A patient person, Smith her look so stressed in many who would know what you said
generally waited until Clark years. Clark explained that she we needed to find out.” Clark
finished and then adeptly added could not get very far on her nodded, smiled, and recounted
his thoughts about what they new squad without first proac- how he had told her to do the
should do with the case. His tively establishing a significant same thing when looking for
forte included identifying where human source base willing to her spouse by creating the
they might find human sources lend a hand. She noted the chal- ideal resume for someone she
of information and coming up lenge of the cyber-threat world thought would be a good match.
with how to further their objec- and how victim companies “The same process works
tives. Not so concerned with often are reluctant to come for- here as well,” said Smith, who
the details and administrative ward. Exasperated, Clark said, then asked what she did next.
requirements for working cases, “I just need people to tell me “Well,” said Clark, “I thought
Smith saw the “big picture.” what they’re seeing, even if no about where that type of per-
Clark had taken these natural crime has been committed. How son might enjoy socializing
November 2010 / 5
your identified need.” Smith solid relationships will contin- we have our model started,
explained that by sensitizing her ue to grow when a quality ex- let’s take a look at your situ-
friends and family, they, in turn, change of giving and receiv- ation and start applying it to
started recognizing opportuni- ing by both parties takes place. your new challenge. What type
ties for her as well. He advised This concept is not limited to of information do you need in
that this was exactly what they material items. In fact, in most your investigations to be pro-
had done together when work- cases, giving and receiving of- active?” Clark began, “I need
ing on the terrorism task force. ten involves just our time and an individual who sees the
Clark would identify the need, listening to one another. Smith type of activity that indicates
and Smith would proactively reminded Clark of the types of someone trying to get ac-
find a source who could fill it. human sources they had devel- cess to a network, even if that
Smith said that they would oped in the past and how most person doesn’t have a specific
tackle her challenge using the of the time, they would sit for crime to report. Someone like a
network security administrator
“
who not only has the technical
know-how but also the access
to describe the kind of activity.
Smith reminded Clark of the types Someone who could say, ‘Yeah,
of human sources they had developed last week someone attempted
in the past and how most of the time, to hack into our network, and
they would sit for hours listening this is how they tried to do it.’
to these individuals talk about the Perhaps even someone who is
concerns and issues in their own lives. active in Web chatting or blog-
ging, following different types
”
of groups that may proactively
share this kind of information
with each other.” “Excellent,”
same model after she explained hours listening to these individ- Smith commented, “now that
how she eventually found the uals talk about the concerns and we know what you need, let’s
vehicle. Clark said, “A friend issues in their own lives. Clark create an ideal resume of the
who I had told about the type of said that she remembered all type of person who can give us
vehicle I wanted informed me too well how they had listened that type of information.” Clark
that her neighbor was selling to one excellent source talk for replied, “That’s easy, obviously
one.” Clark elaborated, “I was over 3 hours about the problems someone in the IT industry
so happy and thankful that my at his work when all they need- who, perhaps, came in without
friend had found the car for me ed from him took only 10 min- a 4-year degree and got it later
that I sent her a nice gift bas- utes to find out. after gaining job experience
ket.” Smith commented, “You and various computer certifica-
naturally did one of the most The Solution tions. I would bet someone who
important things we need to do Smith nodded his head, has spent time gaming, too. A
in any relationship: give when remembering that particular network or systems adminis-
receiving.” He explained that meeting, and said, “Now that trator with management and
November 2010 / 7
calls and offers. “In other Clark thanked Smith for The Result
words,” said Smith, “I went taking time with her and asked A few weeks later, Smith
to where my ideal thing might him if he had any last thoughts. took a break from his work
live or work and sensitized the Smith took out a worn 3" x 5" and strolled down the hall to
environment.” card from his wallet. Clark im- Clark’s office. He had not seen
Smith turned the conversa- mediately recognized it as the her since their last conversa-
tion back to Clark’s issue and one he looked at prior to every tion and was curious about how
said, “Now that we have identi- source meeting that the two she was doing. She was not at
fied the ideal type of person, had conducted. Smith stated, her desk, but it was piled with
let’s focus on where that person “I know you know the stages a stack of newly opened files,
might work and play.” Smith of the relationship-building scribbled with notes, that ex-
asked Clark to think about what process, but it’s always good uded an overall sense of orga-
types of groups, organizations, to remind ourselves of these nized chaos that he had seen in
and clubs the individuals she ideals before we converse with their years of working together
was looking for would belong. the individuals we need to help when cases were going well.
Smith looked up to see
Clark briskly walking down
“
the aisle toward her desk with a
broad smile. She greeted Smith
She replied that by identifying her and stated, “Simple genius.”
need and sensitizing her environment to “Huh?” responded Smith.
that need (i.e., telling Smith the kind of Clark quickly commented
that all of the things they had
source and information she needed and, talked about were common
in the process, externalizing her need and sense but seemed like a mys-
expanding the sensitized environment), tery until thinking about them
she had produced a result. and writing them down. Clark
described how she went to the
”
InfraGard meeting and made a
few friends. A week later, she
received several leads and ideas
Clark sat silently for a moment us.”3 Smith then read the words from these people and many
as she thought through her selflessness, tolerance, genuine- others willing to help. She
mental lists and came up with a ness, sensitivity, integrity, and said, “I now have more work
quick match. “InfraGard meet- humility and the phrase refrain than I know what to do with. I
ings,” she exclaimed.2 “Per- your desire to correct or im- just finished speaking with our
fect,” said Smith. Clark said that prove anyone else with whom management regarding more
she would attend an upcoming you are speaking from his worn resources for our ever-increas-
meeting the following week and card. Clark thanked Smith ing workload.” “Congratula-
try to sensitize the environment for the insights and the fun of tions,” said Smith with a wry
to her need. “That sounds like a working together again and grin, “be careful what you wish
great place to start,” said Smith. went off with renewed energy. for, you might just get it.”
The Bulletin’s
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November 2010 / 9
Police Practice
Preserving Community-Oriented
Policing in a Recession
By Zach Friend, M.P.P., and Rick Martinez
November 2010 / 11
Developing Rapport with Elected Officials departmental events, ride-alongs, and commu-
Law enforcement leaders should strive to build nity meetings. Anything that develops background
solid relationships and open communication with knowledge about the agency or creates a sense
elected officials so they can educate them about the of shared mission and personal relationships will
agency’s strengths and challenges. This will help provide benefits.
government leaders make sound budgetary deci-
sions that can impact the department’s operations. Preserving Community
How can police agencies develop these rela- Policing After Cuts
tionships? They must proactively establish dia- In healthier economic times, SCPD staffed its
logue before a crisis or major budgetary decision Community Services Unit (CSU) with a manager,
arises. Department leaders can reach out to local supervisor, three patrol officers, and three com-
city council members and assume that they do munity service officers. During those fully staffed
not have a strong understanding of the agency. years, CSU hosted or attended weekly community
Whether or not police executives anticipate the meetings and hosted three citizen police acad-
support of elected officials, they still must get to emies, one designed solely for Spanish speakers.
know them individually. What are their values, life Later, budget constraints resulted in the elimina-
experiences, and background? How will those fac- tion of CSU. However, that did not end SCPD’s
tors shape their perceptions of public safety issues community outreach.
and performance? Departments can proactively Now, a handful of managers working out of
maximize opportunities for interaction through the patrol division oversee community policing
invitations to participate in, for instance, roll calls, efforts. SCPD divided patrol areas and assigned
Local youths participate in an early gang prevention program. © Santa Cruz Police Department
November 2010 / 13
Policing Liquor Establishments
A Holistic Approach small American town of 17,000 resi-
By JOHN L. GRAY
A dents had one of the highest crime
rates in the county. By day, it was
a vibrant cluster of small retail shops with
residents and visitors enjoying the friendly
feeling. At night, however, a different per-
sonality emerged: a climate of street fights,
November 2010 / 15
court findings to determine the overservice and manage prob- prosecutor can seek maximum
responsibilities of the liquor lems. The police department accountability.
establishment. When police should learn about this training Challenging the renewal of
managers know the powers and and participate in it. a license, either by suspend-
responsibilities of the business Most liquor establishments ing or revoking it, is the last
establishment and the state’s will make the required changes regulatory option for govern-
regulating agency, as well as necessary to improve business ment. Similar to terminating an
what tools their own depart- safety and will work with the employee, this proves appropri-
ments have, they will be better police to create observable re- ate when all other courses of
equipped to make an effective sults. For the problem business, assistance, training, and pro-
plan and to engage in a working gressive steps of accountability
partnership. have failed. A huge undertak-
“
For example, is the business ing, it will require the political
accountable for the behavior of will and financial commitment
customers outside its building Police leaders of the jurisdiction because rami-
and in its parking lot? Who should appoint one fications concerning loss of tax
has the power to immediately supervisory-level revenue or the perception that
suspend the business’ opera- government is “being heavy
tions? Can police officers make
employee as the point handed” against a business
an arrest for a minor misde- of contact on all can occur. The success of the
meanor that did not occur in issues regarding liquor police department in this regard
their presence? establishments.... is based upon the timely and
ongoing sharing of informa-
”
The Partnerships tion with the elected officials;
Liquor control agents are they need to be kept continually
the experts and an essential re- informed. The process of taking
source in the management of a the police leader can bring in away a problem establishment’s
bar. Many of the state’s licens- more partners who have regula- license may be long and full of
ing agencies have a database tory authority, such as build- obstacles, but, when success-
that provides information that ing inspectors, fire marshals, ful, substantial lasting benefits
can assist the police department health inspectors, public works to the community include
and may include documentation officials for street and parking reduced crime and disorder and
of administrative violations, issues, gambling enforcement the availability of public safety
owners of record, and arrests agents, and state and federal resources for other priorities.
of impaired drivers that came revenue officials.
from the business. Meeting with The police department The Point of Contact
representatives will encourage should enforce codes fairly, Police leaders should ap-
sharing information about a firmly, and impartially. It should point one supervisory-level em-
bar’s problems and its communicate with the prosecut- ployee as the point of contact
successes. ing attorney about the history of on all issues regarding liquor
The licensing agency often problems and the proactive ap- establishments so the business
has resources for training the proaches that did not bring the owners, the licensing agency,
employees of bars to prevent desired compliance because the and the police administration
November 2010 / 17
that can help hold the business officer at least several times patron sting, often involves a
accountable. a week. male and female couple under-
Officers need to know age by more than 12 months. Of
The Training from the department’s com- course, the department should
Employees cannot be held mand staff the importance of craft a comprehensive policy
accountable for what they do doing this work. Conducting and procedure that meets legal
not know. By helping to train bar checks may cause resis- standards and the current pro-
the wait staff and bartenders tance and noncompliance from fessional practice.
about dealing with problems officers who never have done
and understanding expecta- such duties or fail to see their The Documentation
tions, the police department value. They should be trained A 1-page, check-the-box
can increase the impact of the form for officers to document
every call to a liquor establish-
“
value of the lessons. After all,
most workers want to be suc- ment creates a climate of fair-
cessful and avoid problems that ness. In addition to a normal
could lead to criminal liability. The immediacy police report, this form includes
This training may pay other of feedback and information as a cross-refer-
benefits as well. For example, accountability between ence. What makes this tool es-
when officers respond to the the business and the pecially useful is that it requires
business for a complaint, the police can prove the officer to determine whether
employees often will be more valuable. or not the business could have
comfortable cooperating and prevented the event. The com-
”
may provide more information pleted document is distributed
when they have a relationship to the department’s point of
with the department. contact who does a follow-up
on how to conduct patrol checks conversation with the establish-
The Visits of bars, what problems to look ment’s management team.
Knowing that a police for, how to deal with intoxicated The immediacy of feedback
officer likely will stop by persons who are not committing and accountability between
can prevent many problems. a crime, and what solutions and the business and the police can
Defensiveness and skepticism tools they have at their disposal. prove valuable. For example,
often diminish when these The department should in- when a liquor license is up for
visits are not a surprise. These form liquor establishments that renewal or is being challenged,
checks are intended to see undercover operations also will these documents and the depart-
whether employees are using occur throughout the year at dif- ment’s case reports become
the training that they received, ferent times. It should consider the evidence to present at the
to communicate to potential adopting the practice of making administrative hearing. Also,
problem patrons that the police immediate custodial arrests for reliable data on liquor establish-
are available to take action, and employees who commit crimes ments within the jurisdiction
to deepen the communication because these have a chilling helps to ascertain if perceptions
relationship with the depart- effect on establishments that are accurate. Wise leaders
ment. A worthy goal is to have allow crime to happen. One ef- will listen carefully to their
every bar visited by a patrol fective operation, the underage employees for the reasons
Bulletin Honors
November 2010 / 19
Leadership Spotlight
Special Agent Art Gonzales of the FBI Leadership Development Unit at the FBI Academy prepared this
Leadership Spotlight.
© Thinkstock.com
n the most recent term, governing when law enforce- well-being of occupants inside.
November 2010 / 21
This article provides a brief his Miranda rights, attempted claim that his statement still
synopsis of these cases. As al- to interrogate him. The subject should be suppressed because
ways, law enforcement agencies largely remained silent; then, he never adequately waived his
must ensure that their own state about 2 hours and 45 minutes right to silence. At first blush,
laws and constitutions have not into the interrogation, a detec- this argument appears to have
provided greater protections tive asked if he believed in God, merit in light of the language in
than the U.S. constitutional which the subject indicated he the original Miranda opinion
standards. did. The detective then asked, emphasizing the heavy burden
“Do you pray for God to for- imposed on the government to
DECIDED CASES give you for shooting down that demonstrate that a valid waiver
boy?” The subject responded, was obtained and that “a valid
Berghuis v. Thompkins, “yes.”2 Authorities sought to use waiver will not be presumed
130 S. Ct. 2250 (2010) this admission against him. The simply from the silence of the
In this case, the Supreme lower courts allowed the state- accused after warnings are
Court addressed the impact that ment to be used, but the Sixth given or simply from the fact
silence has on attempts to inter- Circuit Court of Appeals ruled that a confession was in fact
rogate an in-custody subject and in favor of the defendant.3 The eventually obtained.”6 However,
whether officers could proceed Supreme Court reversed this the Supreme Court has clarified
with a custodial interview in the decision and found no Miranda its position in post-Miranda
absence of an explicit waiver violation.4 cases, emphasizing that Miran-
of Miranda rights. The subject The Supreme Court ex- da is designed to ensure that
in this case was arrested for his plained that the subject’s mere the subject is advised of and
involvement in a murder, and silence in the face of question- understands certain rights and
detectives, after advising him of ing was not a clear and unam- that, if invoked, these rights
biguous invocation of his right are safeguarded.7 In Berghuis,
to remain silent. Previously, the the Court held that “Where
Court had ruled that to effec- the prosecution shows that a
tively invoke the Miranda right Miranda warning was given and
to counsel, a subject must do so that it was understood by the ac-
clearly and unambiguously.5 In cused, an accused’s uncoerced
Berghuis, the Court acknowl- statement establishes an implied
edged that there was no reason waiver of the right to remain
to apply different standards, silent.”8 By responding to the
depending on whether the sub- detective’s question, the suspect
ject invokes the Miranda right demonstrated a willingness to
to counsel or right to silence. waive his right to silence.
Accordingly, the invocation of The Supreme Court also re-
either the right to silence or the jected the defendant’s argument
right to counsel must be clear that even if he provided a valid
Special Agent Baker is chief and unambiguous to be waiver, the detectives were not
of the Legal Instruction Unit
at the FBI Academy.
effective. permitted to question him until
The Supreme Court also they obtained the waiver first.
considered the defendant’s The Court noted that there are
November 2010 / 23
He later was charged with vari- to counsel for 14 days from with him.18 Thus, the waiver
ous sexual abuse charges and his release from custody. Ac- obtained from Shatzer was not
sought to have the statements he cording to the Court, 14 days the product of coercion, and his
provided suppressed. gives “plenty of time for the statements were admissible.
Shatzer argued that because suspect to get reacliminated to
he remained in continuous his normal life, consult with Florida v. Powell,
custody following his invo- friends and counsel, and shake 130 S. Ct. 1195 (2010)
cation of his Miranda right off any residual coercive effects In this case, the Supreme
to counsel, law enforcement of prior custody.”17 Court addressed the adequacy
could not initiate any contact Applying this principle to of Miranda warnings contained
with him while he remained in Shatzer who was incarcerated, within standard advice-of-rights
custody and that any waiver of as opposed to pretrial deten- forms used by the Tampa, Flor-
his Miranda rights provided at tion, the traditional freedom-of- ida, Police Department (TPD).
the request of law enforcement movement test does not resolve The defendant alleged that the
was not valid. The trial court the issue of custody. The Court form insufficiently advised him
disagreed with Shatzer’s asser- distinguished between incar- of his right to have counsel
tion, concluding that given the ceration in the general prison present during an interrogation.
passage of time, a sufficient population and pretrial deten- In Miranda, the Supreme Court
break in custody occurred, tion and found that there was a held that prior to custodial
permitting detectives to reiniti- sufficient break in custody (over interrogation, a defendant must
ate contact with Shatzer despite 14 days) following Shatzer’s be advised that he has, among
his continued incarceration.15 initial interrogation until the other rights, “the right to con-
The Maryland Court of Appeals detective reinitiated contact sult with a lawyer and to have
reversed the trial court’s ruling, the lawyer with him during
holding that the passage of time interrogation.”19 The TPD form
alone will not suffice to create did not expressly state this, but,
a break in custody for purpose rather, advised the defendant of
of the Miranda-Edwards rule.16 his right to talk with an attorney
The Supreme Court agreed to before answering any questions
hear the case to clarify what and that he could invoke this
will constitute a sufficient break right “at any time...during the
in custody and the impact of interview.”20
incarceration on the Miranda- The Florida Supreme Court
Edwards protection. concluded that the form did not
The Supreme Court ruled satisfy the mandate of Miran-
that a break in custody alone da.21 The U.S. Supreme Court
will not end the Miranda- reversed, holding that the form
Edwards protection. The Court communicated the essential
instead called for a “cooling message of Miranda despite the
off” period, prohibiting law lack of adherence to its precise
enforcement from attempting to language. The Supreme Court
interview a subject who previ- again refused to require rigid
ously invoked his Miranda right © Photos.com compliance to precise language,
November 2010 / 25
specific number of characters.
For several billing cycles, the
officer exceeded his allotted
character limit. His supervi-
sor informed him that while he
could review the messages, he
would refrain from doing as
long as the officer paid for the
excess charges. After several
months of exceeding the charac-
ter limit, management decided
to review the messages to deter-
mine the necessity of a contract
modification. The service pro-
vider supplied transcripts of the
© Photos.com
messages, which, with respect
to Officer Quon, were found to
do not need ironclad proof of a department’s review of text contain numerous nonwork-re-
likely serious, life-threatening messages sent to and from his lated, inappropriate messages.34
injury to invoke the emergency department-issued pager vio- The Supreme Court re-
aid exception.”30 The Court lated his Fourth Amendment frained from addressing the
concluded by stating: rights. The Ninth Circuit Court issue of whether the officer had
It does not meet the needs of Appeals concluded that the an expectation of privacy in the
of law enforcement or the officer maintained an expecta- messages sent to and from the
demands of public safety to tion of privacy in the contents pager. The Court noted that the
require officers to walk away of the pager and that the review department made it clear that
from a situation like the one of the messages constituted the pager was considered within
they encountered here. Only an unreasonable search.32 The the scope of the computer use
when an apparent threat has Supreme Court agreed to hear policy. However, it recognized
become an actual harm can the case. that whether an expectation of
officers rule out innocuous The pager at issue was privacy existed was uncertain
explanations for ominous provided to the officer by the given the impact of statements
circumstances. But ‘[t]he role department to facilitate com- by the officer’s supervisor that
of a peace officer includes munication among SWAT team he did not intend to review the
preventing violence and members. The agency had a pager’s messages as long as the
restoring order, not simply “Computer Usage, Internet and officer paid the overage. The
rendering aid to casualties.’31 E-Mail Policy” that did not spe- Supreme Court stated:
cifically include pagers, but the Prudence counsels caution
City of Ontario v. Quon, department made it clear to em- before the facts in the instant
130 S. Ct. 2619 (2010) ployees that it would treat text case are used to establish far-
A police officer sued his messages the same as e-mails.33 reaching premises that define
agency and the city he worked The department’s contract with the existence, and extent, of
for on the grounds that the the service provider covered a privacy expectations enjoyed
November 2010 / 27
statute at issue.43 The Court McDonald v. City of Chicago, CASES FOR NEXT TERM
concluded that consistent with 130 S. Ct. 3020 (2010) Several cases of interest to
congressional authority un- In this case, the Supreme the law enforcement commu-
der the Commerce Clause, the Court ruled that the Second nity are already scheduled to be
statute is “rationally related Amendment right to keep and heard by the Supreme Court.
to the implementation of a bear arms for the purpose of These include the five presented
constitutionally enumerated self-defense applies not only to here.
power.”44 The Court refer- the federal government, as de-
enced the inherent authority termined by District of Colum- Thompson v. Connick, 578
Congress has with respect to bia v. Heller,47 but to the states F.3d 293 (5th Cir. 2009), cert.
matters relating to the han- under the Due Process Clause granted, Connick v. Thompson,
dling of federal prisoners, in- of the Fourteenth Amendment. 130 S. Ct. 1880 (2010)
cluding decisions pertaining to In reaching this decision, the In a lawsuit brought against
the provision of mental health Court concluded that the right the New Orleans District Attor-
care and the need to act to pro- to bear arms for self-defense ney’s Office, a former criminal
tect the public from the dan- is “fundamental to our scheme defendant sued and was award-
gers these prisoners may pose, of ordered liberty” and “deeply ed 14 million dollars after a jury
and concluded that the statute rooted” in this nation’s histo- determined that the prosecutor’s
in question is rationally related ry.48 Consistent with Heller, office failed to adequately train
to Congress’ authority.45 In ad- the Court emphasized that this the prosecutor in the handling
dition, the Court rejected the right is not absolute and that the of exculpatory evidence. The
argument that the statute vio- holding “does not imperil every Supreme Court will consider
lated the Tenth Amendment to law regulating firearms.”49 whether liability imposed on the
the Constitution, which states: D.A.’s office for failing to train
“The powers not delegated to the prosecutor in a single case
the United States by the Con- is contrary to the traditional
stitution, nor prohibited by it strict culpability standards by
to the States, are reserved to the Court in Canton v. Harris50
the States respectively, or to and Board of Commissioners of
the people.” Finding that the Bryan County v. Brown.51
statute is within the scope of
congressional authority, this People v. Bryant, 768 N.W.2d
area, thus, is not within those 65 (2009), cert. granted, Michi-
matters “not delegated to the gan v. Bryant, 130 S. Ct. 1685
United States.” Further, the (2010)
statute takes into account the The Supreme Court again
interests of the states by re- will address the parameters of
quiring coordination with the the accused’s Sixth Amend-
state in which the prisoner is ment right to confront witnesses
domiciled or tried and encour- against him in a case involving
ages the state to assume cus- statements made by a victim
tody of the individual.46 shortly after a shooting. The
© Photos.com
November 2010 / 29
17 25
Right to Silence,” FBI Law Enforcement Maryland v. Shatzer, 130 S. Ct. 1213, Fisher at 548, quoting Docket No.
Bulletin, September 2010, 25-30. 1223 (2010). 276439, 2008 WL 786515 at 2 (Mich.App.
5 18
Davis v. United States, 512 U.S. 452 The Supreme Court distinguished 2008).
26
(1994). between incarceration and pretrial deten- Id at 549.
6 27
Miranda at 475. tion, noting that coercive pressure exists in 547 U.S. 398, 126 S. Ct. 1943 (2006).
7 28
See Colorado v. Connelly, 479 U.S. the context of pretrial detention as subjects 130 S.Ct. at 548, quoting Brigham
157 (1986); North Carolina v. Butler, 441 may be focused on what impact their City v. Stuart, 547 U.S. 398 at 403 (2006).
29
U.S. 369 (1979). cooperation has on a pending prosecution. Id., quoting Brigham City at 406.
8
Berghuis at 2262. This is in contrast to incarceration where See also Mincey v. Arizona, 437 U.S. 385
9
Id. at 2264. subjects are not influenced by these coer- (1978).
10 30
Id. at 2263. cive pressures and when interaction with Id. at 549 (internal quotation marks
11
Id. at 2264 law enforcement is over they are returned omitted).
12 31
For a more thorough discussion of to the general prison population where Id. at 549, quoting Brigham City at
the Shatzer decision see Kenneth A. they live in “their accustomed surround- 406.
32
Myers, “Miranda Update: Fifth Amend- ings and daily routine [where] they regain Quon v. Arch Wireless Operating Co.,
ment Protection and Break in Custody,” the degree of control they once had over Inc, 529 F.3d 892 (9th Cir. 2008).
33
FBI Law Enforcement Bulletin, May 2010, their lives.” Shatzer at 1224. See City of Ontario v. Quon, 130 S.
19
26-32. Miranda at 471. Ct. 2619, 2625 (2010).
13 20 34
451 U.S. 477 (1981); Minnick v. Florida v. Powell, 130 S. Ct. 1195, Id. at 2627. For example, during the
Mississippi, 498 U.S. 146 (1990). 1199-1200 (2010). month of August 2002, the officer sent or
14 21
Arizona v. Roberson, 486 U.S. 675 State v. Powell, 998 So.2d 531 received 456 messages during work hours,
(1988). (2008). of which 57 were work related.
15 22 35
Maryland v. Shatzer, 130 S. Ct. 1213, See California v. Prysock, 453 U.S. Id. at 2629.
36
1218 (2010), referring to the trial court’s 355 (1981); Duckworth v. Eagan, 492 U.S. 480 U.S. 709, 107 S. Ct. 1492 (1987).
37
opinion at No. 21-K-06-37799 (Cir. Ct. 195 (1989). Id. at 2631, rejecting the Ninth
23
Washington City, Md., Sept. 14, 2006). Powell at 1205. Circuit Court of Appeal’s holding that
16 24
Shatzer v. State, 405 Md. 585, 954 Michigan v. Fisher, 130 S. Ct. 546 the department had to choose the least
A.2d 1118 (Md. 2008). (2009). intrusive method to conduct this review
to satisfy reasonableness, stating, “Even
© Photos.com assuming there were ways that [the depart-
ment] could have performed the search
that would have been less intrusive, it does
not follow that the search as conducted
was unreasonable.” Id. at 2632.
38
Adam Walsh Child Protection and
Safety Act of 2006, Pub.L. No. 109-248,
120 Stat. 587 (2006).
39
130 S. Ct. 1949, 1955 (2010).
40
United States v. Comstock, 507
F.Supp.2d 522 (E.D.NC. 2007).
41
United States v. Comstock, 551 F.3d
274 (2009).
42
Subsequently, two other federal
circuits considered the legislative authority
issue, resolving the issue in favor of the
government, thus creating a split of opin-
ion on the issue. See United States v.
Volungus, 595 F.3d 1 (1st Cir. 2010);
United States v. Tom, 565 F.3d 497 (8th
Cir. 2009).
43
In rejecting the Commerce Clause
challenge, the Supreme Court drew upon
Wanted:
Notable Speeches
November 2010 / 31
Bulletin Report
Gang Survey
Highlights of the 2006 National Youth Gang Survey is an Office of Juvenile Justice and
Delinquency Prevention (OJJDP) Fact Sheet that reports findings from the research. Since
1995, the National Youth Gang Center (NYGC) has conducted this annual survey of law
enforcement agencies across the United States regarding the presence and characteristics of
local gang problems. Selected in 2002, the current nationally representative sample includes
all police organizations that serve cities with populations of 50,000 or more and all suburban
county police and sheriff’s departments, along with a randomly selected sample of police
agencies in smaller cities (between 2,500 and 49,999 population) and rural county police and
sheriff’s departments. For the 2006 survey, 86 percent (2,199) of the 2,551 survey recipients
responded. NYGC asked participants to report information solely for youth gangs, defined as
“a group of youths or young adults in your jurisdiction that you or other responsible persons
in your agency or community are willing to identify as a ‘gang.’”
Survey results indicated that approximately 785,000 gang members and 26,500 gangs
were active in this country in 2006. The survey asked respondents to indicate factors influ-
encing gang-related violence. Over half of the agencies reported conflict between gangs and
drug-related issues as directly affecting levels of gang-related violence. Respondents advised
of gang-member migration across U.S. jurisdiction, emergence of new gangs, and the return
of gang members from secure confinement as somewhat impacting this type of violence and
conflict within a gang and gang-member migration from outside the country as infrequently
influencing such criminal behavior. The OJJDP Fact Sheet (FS 200805) is available at the
National Criminal Justice Reference Service’s Web site at http://www.ncjrs.org.
Official Business
Penalty for Private Use $300
Patch Call
The Payson, Arizona, Police Department’s Sectioned into four unique squares, the patch
patch depicts an elk against the pine tree-covered of the Toccoa, Georgia, Police Department patch
skyline of the Mogollon Rim, a stunning geo- represents the city, state, and nation that the agency
graphical wonder that stretches for 200 miles protects. The green and white “T” graphic displays
across central Arizona. A place of abundant wild- the city logo; its shape mimics the picturesque Toc-
life and a plethora of outdoor activities, Payson coa Falls illustrated in the bottom left section of the
sits in the heart of the Rim, which attracts visi- patch. The bottom right depicts another Georgian
tors from all over the world to see its panoramic geographical wonder, the Currahee Mountain,
views. named for the Cherokee word for “stand alone.”